Soukky and Sythongsay Luanglath argue for new trial - Out on bail since their 1993 robbery conviction, the men are facing 15-year prison terms and then possible deportation to Laos.

Eleven years after Soukky and Sythongsay ("Khek") Luanglath were
convicted of a violent robbery they maintain they had no part in,
lawyers argued that a judge's inconsistent findings entitled the
brothers to a new trial in a case "gone disastrously wrong."
Arguing before the Rhode Island Supreme Court, John A. MacFadyen
and Deputy Public Defender Barbara Hurst underscored former
Superior Court Judge Corrine P. Grande's "shocking" reversal of her
own findings with regard to eyewitness identification.
"I suggest that what happened here is so unusual, so bizarre, that
it violates their constitutional right to due process of law," said
MacFadyen, the defendants' court-appointed appellate lawyer.

Soukky Luanglath, 36, and his brother Khek, 34, have been free on
bail since 1993, when they were sentenced for a 1990 robbery in
Providence's Washington Park section. During the robbery,
members of the Souvaneleuth family were tied up at gun point and
robbed of $25,000 in cash and $13,000 in gold. In their brief
submitted to the Supreme Court in June, Hurst and MacFadyen say
that this case "began as a straightforward eyewitness
identification. Three armed robbers, more or less perfectly masked,
broke into a dwelling house and terrorized a Laotian family."
At first, several victims said they did not actually see the
perpetrators' faces. A few days later, "one family member emerged
to accuse Khek and Soukky Luanglath as being two of the
perpetrators," their brief states.

In the days after the robbery, the victims attempted on their own
to determine who had robbed them in their homes, including by
making a privately orchestrated "show up" at a Lao community
concert, where the Luanglaths were performing in a rock band.
By the end, the victims "were confidently asserting that the
perpetrators' faces were in full view, and they could make positive
and certain identifications."

In 1993, Grande found that eyewitness identification in the case
was "totally unreliable," but that Rhode Island law gave her no
authority to grant a new trial based on that finding, MacFadyen
said. But in 2000, after the Supreme Court reversed that
decision and remanded the case to Grande with instructions to give
"full effect to her original findings," Grande "did a 180-degree
turn" and called the eyewitness identification "totally reliable,"
MacFadyen said. "Our claim is that it was wrong for her to do
that, beyond the scope of what the [Supreme] Court told her to do,"
MacFadyen said after yesterday's proceedings. "It is not what was
contemplated, and consequently, in essence denies you the due
process of law that you're entitled to in Rhode Island."

Arguing for the state, Special Assistant Attorney General
Christopher R. Bush said that Hurst and MacFadyen's "entire
argument is premised on their interpretation of Judge Grande's
first decision. The state argues that she never reached that
definitive conclusion." If the Supreme Court does not grant a
new trial, the brothers stand to serve 15 years in prison, then
face deportation to Laos, said MacFadyen. MacFadyen said the
brothers have not had any run-ins with the law in those ensuing
years, and "their willingness to appear . . . they clearly aren't
running from anything . . . is proof positive" of their
innocence. "If they go to jail -- I can't say the words. It's
a travesty of justice," said Vilay Luanglath, the defendants'
brother. "A huge error by the state."

Other issues raised by Hurst and MacFadyen yesterday included
Grande's issuance of an "Allen charge" to the jury without first
disclosing to lawyers that jurors were split 10 to 1. (An
Allen charge refers to instructions given to a jury that remains
deadlocked after deliberations; an Allen charge essentially urges
jurors to go back to the table and move things along). Hurst
also argued that it was not clear whether the defendants understood
their rights after one juror refused to vote during deliberations.
The Luanglaths agreed to waive their right to a jury of 12, and
allow a jury of 11 to continue. "Nowhere in this record --
was it explained that they had a right to a jury trial of 12,"
Hurst said. Hurst also called problematical Judge Grande's "oblique
reference to a mistrial" as an option in that situation.
Grande did not outline that option during a chambers conference
with defense counsel, said Hurst, but did so later in open court,
after the defense counsel had already explained the options to the
Luanglaths (minus the option for a mistrial).

Bush, the special assistant attorney general, countered that the
defense attorneys "knew there was a split -- they did not know what
the split was, but they knew the jury was having problems." But
defense counsel did not press the matter, said Bush. "The
point is, she [Grande] specifically asked defense counsel if they
had an objection, and they said 'No,' " Bush said. As
Grande's findings took center stage, Chief Justice Frank Williams
said, "It pains me that it's the trial judge who's at issue
today." Supreme Court Justice Maureen McKenna Goldberg
referred to Grande's statement that she did not disclose the 10-1
split among the jurors before delivering an "Allen charge."
Goldberg said that Grande "just about said, by not disclosing the
split before delivering the Allen charge, that 'I've prejudiced the
defendants.' This is a trial judge who indicts herself -- that's
what we're dealing with."